0120064467
01-16-2008
Lorenzo Holloway, Complainant, v. Michael E. Toner, Chairman, Federal Election Commission, Agency.
Lorenzo Holloway,
Complainant,
v.
Michael E. Toner,
Chairman,
Federal Election Commission,
Agency.
Appeal No. 01200644671
Agency No. FEC EEO 2005-07
DECISION
On July 20, 2006, complainant filed an appeal from the agency's June
21, 2006 final action concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (TITLE VII), as amended, 42 U.S.C. �
2000e et seq. For the following reasons, the Commission AFFIRMS the
agency's final action.
At the time of events giving rise to this complaint, complainant worked
as an Assistant General Counsel for Public Financing and Audit Advice,
GS-0905-15, Office of General Counsel.
On November 18, 2005, complainant filed a formal EEO complaint, wherein
he claimed that he was discriminated against on the bases of race
(African-American) and sex (male) when his request to work a flexible
work schedule, specifically a change of schedule from 8:00 a.m. - 4:30
p.m. to 7:00 a.m.- 3:30 p.m., was denied after August 22, 2005.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final action pursuant to 29
C.F.R. � 1614.110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged.
The agency determined that complainant established a prima facie case of
discrimination on the alleged bases as a White male employee and White
female employees were allowed to change their tour of duty work hours
while management denied complainant the same treatment. The agency
further determined that it articulated legitimate, nondiscriminatory
reasons for denying complainant's request. According to the agency,
it denied complainant's request to change his duty hours because it was
concerned that complainant leaving work at 3:30 p.m. would negatively
impact his ability to meet his obligations to his own staff and to other
stakeholders and clients, both inside and outside the Office of General
Counsel. The agency noted that no other supervisor in the Office of
General Counsel ended his or her workday at 3:30 p.m. The agency stated
that only two supervisors in the Office of the General Counsel requested
and were permitted to change their hours of work during the two-year
investigative period. The agency stated that each of their tours of
duty ended well after 3:30 p.m. According to the agency, the Deputy
Legal Counsel stated that there are times when complainant's expertise
and level of technical knowledge are needed and that while the Associate
Legal Counsel may be able to answer some policy questions, there was much
work in the Office of General Counsel after 3:30 p.m. and supervisors
are supposed to be engaged in that work. Further, the agency noted that
the Associate Legal Counsel stated that during the period complainant
worked 7 a.m. to 3:30 p.m., she did not inform him that his services were
needed after he left because the change in duty hours was only temporary.
The agency noted that no manager has been permitted to leave before 4:30
p.m. The agency determined that complainant's rebuttal evidence failed
to establish that management's decisions were pretext for discrimination.
On appeal, complainant contends that a White male employee and a White
female employee were allowed to change their work hours. Complainant
maintains that the same expertise and availability test that was utilized
to deny his request to change his work hours was not applied to either
of these individuals. According to complainant, the agency created
this policy after he submitted his request and applied the policy to
him retroactively. Nevertheless, complainant argues that he satisfied
the expertise and availability test. Complainant notes that one of the
employees he supervised stated that it was not a detriment or hindrance to
her work when he left at 3:30 p.m. Complainant also notes that a client
stated he did not experience any decrease in service during the time that
complainant was working from 7:00 a.m. to 3:30 p.m. This client stated
that he could not recall an occasion during that period that he wanted to
speak with complainant or sought his advice, and he was not available.
In response, the agency asserts that the job functions of the alleged
comparatives are not the same as those of complainant. The agency
further asserts that the Deputy Legal Counsel does not set the policy for
the working conditions of all Assistant General Counsels. The agency
states that the decision to deny complainant's request was made by
his immediate supervisor and that while the Deputy Legal Counsel is
complainant's second-level supervisor, he is the third level supervisor
for the alleged comparatives.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of discrimination under the alleged bases
with regard to him being denied a change in his duty hours. We find
that the agency articulated legitimate, nondiscriminatory reasons for
its decision. Although complainant presents a reasonable argument that
operations within his office had not been disrupted during the temporary
period that he worked earlier hours, this argument by itself does not
establish that the agency's explanation constitutes pretext. Complainant
has not refuted the agency's position that no other manager in the Office
of General Counsel completes his or her work hours before 4:30 p.m.
Complainant also has not established that it was unreasonable for the
agency to determine that his experience and expertise necessitated his
availability beyond his preferred 3:30 p.m. departure time. We find that
complainant has not refuted the agency's legitimate, nondiscriminatory
reasons for not granting his request for a change in his work hours.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. The appellate decision will have a substantial impact
on the policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your
time in which to file a civil action. Both the request and the civil
action must be filed within the time limits as stated in the paragraph
above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 16, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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01200644
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036